Delhi District Court
Sc No. 166/17; Fir No.206/14; Ps. Adarsh ... vs . Jitender Kumar Page No. 1 Of 19 on 20 November, 2018
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IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGE02, NORTH
ROHINI COURTS, DELHI
STATE CASE No..................................166/17
FIR No. 206/14
PS Adarsh Nagar
U/s: 395 IPC
State
Versus
Jitender Kumar
S/o Sh. Om Parkash,
R/o H. No. A427, Gali No. 3/8,
Janta Vihar, Mukandpur, Delhi
(Permanent R/o. Gram Purey
Moti Ram Ka Poorva, Post Karmvi
PS & District Amethi, U.P.)
Date of institution: 28.03.2017
Judgment reserved on: 15.11.2018
Judgment delivered on: 20.11.2018
ORDER/JUDGMENT: The accused stands acquitted of
the offence(s) u/S 395 IPC.
J U D G M E N T
1.Brief facts, as stated in the chargesheet are that on 21.03.2014, DD No. 23A was marked to SI Sandeep Kumar, who alongwith Ct. Mukesh went to the place of occurrence i.e. near Mukundpur red light, Road No. 51, where they met ASI Lekhraj, Ct. Pushpender, HC SC No. 166/17; FIR No.206/14; PS. Adarsh Nagar State Vs. Jitender Kumar Page No. 1 of 19 -2- Devanand and HC Pramod. The said police officials had produced five offenders i.e. four JCLs and accused Jitender Kumar S/o Sh. Om Prakash. At the spot, SI Sandeep Kumar also met complainant Niranjan S/o Ashok Kumar. ASI Lekhraj also recorded the statement of complainant Niranjan and handed over the said statement to SI Sandeep. The statement of complainant Niranjan reads as under:
"That he has been studying in class XI in Government Sarvodaya School, Saraswati Vihar. On 21.03.2014, he was having exams in his school and after giving exam, on or about 5:00 pm, he deboarded from a bus at near Adarsh Nagar flyover and after deboarding from the bus, he was walking towards his house at Kewal Park. When he reached under flyover, he saw five boys sitting in a battery rickshaw and the said boys called him, but he refused to go near to them. Upon this, one amongst the said boys came near him and said boy caught hold of his bag and took him near the battery rickshaw and asked him for handing over the money, but he stated that he was not possessing any money.
Thereafter, the said offender asked him for showing his pocket, but when he refused, the said offender put his hand inside his pocket and robbed his mobile phone make Samsung. Upon this, he demanded his mobile from SC No. 166/17; FIR No.206/14; PS. Adarsh Nagar State Vs. Jitender Kumar Page No. 2 of 19 -3- the said offender, but one of the offender had pointed out one toy type pistol and gave beatings him. Upon this, he demanded the SIM of his mobile phone and the offenders had returned the SIM to him and thereafter the offenders flew in battery rickshaw and went towards Mukundpur. He saw that near the said place, the rickshaw rehdi of his father was parked and he found his father getting his beard shaved.
He ran towards his father and informed him about the occurrence. His father immediately hired a TSR and followed the said battery rickshaw and when they reached at the Kewal Park Adarsh Nagar red light, they found some traffic police personnels and they informed the occurrence to the said police officials. The said police officials chased the battery rickshaw on their motorcycle and at Mukundpur red light, they managed to stop the said battery rickshaw and also managed to apprehend all the five offenders, whose names were revealed after inquiry including the name of accused Jitender Kumar. He further stated that police officials namely HC Devanand, HC Pramod after apprehending all the five offenders had made a wireless message to the police and upon their call, local police officials also reached the spot SC No. 166/17; FIR No.206/14; PS. Adarsh Nagar State Vs. Jitender Kumar Page No. 3 of 19 -4- and his statement was recorded".
2. On the basis of said statement, SI Sandeep Kumar had made endorsement and got the FIR no. 206/14 registered through Ct. Mukesh.
3. During investigation, SI Sandeep Kumar prepared site plan and recorded the statement of witnesses and also interrogated all the five offenders and prepared apprehension memos of four JCLs and also effected the arrest of accused Jitender Kumar. He also seized the battery rickshaw and toy type pistol. He recorded the statements of witnesses.
4. After completion of investigations, a chargesheet for offence(s) punishable u/s 395 IPC was filed against the accused Jitender Kumar.
5. On committal of the case to the Court of Sessions, vide detailed order dated 21.04.2017, a charge(s) for offence(s) u/s 395 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
6. Thereafter, prosecution in support of its case has examined 9 witnesses :
SC No. 166/17; FIR No.206/14; PS. Adarsh Nagar State Vs. Jitender Kumar Page No. 4 of 19 -5-
a) PW1 is ASI Ram Singh i.e. DO, who got registered FIR no.
206/14 on a computer and exhibited the copy of FIR as Ex. PW1/A. He also made endorsement Ex. PW1/B on the rukka. He also issued certificate Ex. PW1/C u/s 65B of Indian Evidence Act.
b) PW2 is Sh. Niranjan, who has deposed and corroborated his statement made to the police, but he deposed before the court that four persons met him and apprehended him and on the gun point, they asked him to hand over the money and the said offenders robbed his mobile phone make Samsung and also gave beatings to him and thereafter, they all left in a battery rickshaw, which was driven by fifth person. He also deposed about the manner of apprehension of all the five offenders in his presence. He also exhibited the statement Ex. PW2/A made before the police. He also exhibited the sketch of recovered toy pistol as Ex. PW2/B and its seizure memo as Ex. PW2/C and seizure memo of battery rickshaw as Ex. PW2/D. He also exhibited the arrest memo of accused Jitender Kumar as Ex. PW2/E. He also identified the toy pistol as Ex. P1.
c) PW3 is HC Devanand, who deposed himself to be on duty at traffic circle Model Town alongwith HC Pramod on the date of the occurrence. He deposed the manner in which the offenders were chased and were apprehended. He also deposed that upon the arrival of SI Sandeep, all the five offenders were handed over to him. He also identified the toy pistol recovered from one of the SC No. 166/17; FIR No.206/14; PS. Adarsh Nagar State Vs. Jitender Kumar Page No. 5 of 19 -6- offender as Ex. P1.
d) PW4 is Ct. Pushpender, who had accompanied ASI Lekhraj at the spot, where they met HC Pramod and HC Devanand. He also deposed that the aforesaid police officials had produced five persons alongwith a battery rickshaw including accused Jitender as well as one toy pistol. He also deposed that SI Sandeep alongwith staff had also reached there and all the five offenders were handed over to SI Sandeep.
e) PW5 is ASI Pramod Kumar, who has also deposed himself to be on duty at traffic circle Model Town alongwith HC Devanand. He deposed the manner in which the offenders were chased and were apprehended. He also deposed that upon the arrival of SI Sandeep, all the five offenders were handed over to him. He also identified the toy pistol recovered from one of the offender as Ex. P1. He also identified accused Niranjan being amongst the said five offenders.
f) PW6 is Sh. Ashok, who is the father of complainant Niranjan. He deposed that on one day, he has getting his beard shaved from a road side barber and his son Niranjan came to him and told about the occurrence. He immediately went towards the traffic police officials at red light and his son also came there and thereafter they all followed the robbers and on the identification of his son, near the Mukundpur red light, in a battery rickshaw five persons were apprehended including accused Jitender.
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g) PW7 is Ct. Mukesh, who on receipt of DD no. 23A had accompanied SI Sandeep to the place of occurrence and he also deposed that all the five offenders were handed over to them including accused Jitender. He also deposed that on the basis of statement made by Niranjan recorded by SI Lekhraj, SI Sandeep prepared rukka and got the FIR registered through him. He also exhibited the sketch of toy pistol as Ex. PW2/B, its seizure memo as Ex. PW2/C and the seizure memo of erickshaw as Ex. PW2/D and the arrest memo of accused Niranjan as Ex. PW2/E, his personal search memo as Ex. PW7/A and the disclosure statement made by accused Jitender as Ex. PW7/B.
h) PW8 is SI Sandeep, who on receipt of DD no. 23A had accompanied Ct. Mukesh to the place of occurrence and he also deposed that all the five offenders were handed over to them including accused Jitender. He also deposed that on the basis of statement made by Niranjan recorded by SI Lekhraj, he prepared rukka Ex. PW8/A and got the FIR registered through Ct. Mukesh. He also prepared the rough site plan Ex. PW8/B. He also exhibited the sketch of toy pistol as Ex. PW2/B, its seizure memo as Ex. PW2/C and the seizure memo of erickshaw as Ex. PW2/D and the arrest memo of accused Niranjan as Ex. PW2/E, his personal search memo as Ex. PW7/A and the disclosure statement made by accused Jitender as Ex. PW7/B. He also identified the case property.
SC No. 166/17; FIR No.206/14; PS. Adarsh Nagar State Vs. Jitender Kumar Page No. 7 of 19 -8-
i) PW9 is retired SI Lekhraj, who had accompanied Ct. Pushpender at the spot, where they met HC Pramod and HC Devanand. He also deposed that the aforesaid police officials had produced five persons alongwith a battery rickshaw including accused Jitender as well as one toy pistol. He also deposed to have recorded the statement of complainant Niranjan.
He also deposed that since the place of occurrence falls in the jurisdiction of PS Adarsh Nagar, he made a call to the DO of PS Adarsh Nagar. He also deposed that upon his call, SI Sandeep alongwith staff had also reached there and all the five offenders were handed over to SI Sandeep.
7. Vide order dated 04.10.2018, the prosecution evidence was closed.
8. Thereafter, statement of accused u/s 313 Cr.P.C. was recorded separately in which the entire incriminating evidence appearing against the accused was put to him, in which the defence of the accused was that he had been falsely implicated in the present case. However, he chose not to lead evidence in his defence.
9. I have heard Sh. Pankaj Bhatia, Ld. Addl. PP for the State and Sh. Naveen Kumar, Ld. Counsel for the accused SC No. 166/17; FIR No.206/14; PS. Adarsh Nagar State Vs. Jitender Kumar Page No. 8 of 19 -9-
10. It was contended by Ld. Defence Counsel that there is only one eye witness in this case PW2 Niranjan, complainant, whose testimony is not believable, even otherwise, he has admitted in his examination in chief that only four persons met him near the Adarsh Nagar Flyover and robbed him on the gun point of his mobile phone and they all left in battery rickshaw, being driven by the accused. He further submits that in crossexamination, PW2 had admitted that when the complaint PW2/A was signed by him at that time, only name and address was written on the same and rest of the portion was blank and the witness further admitted in his crossexamination that it was correct that the accused was not amongst the persons, who had robbed him and he was only the driver of the battery rickshaw and the present accused had also not done anything wrong with him.
He further submits that the IO in his crossexamination has admitted that the accused was the driver of the auto rickshaw and he could not found during the investigation the association of the accused with the other JCLs. He had also not shown the place where the erickshaw was parked in the site plan and during investigations, it was revealed to him that the present accused had never deboarded from the erickshaw and only the other JCLs had deboarded the erickshaw and had committed robbery.
He further submits that the said mobile phone was not recovered nor any bill regarding the ownership of the mobile phone has been SC No. 166/17; FIR No.206/14; PS. Adarsh Nagar State Vs. Jitender Kumar Page No. 9 of 19 -10- produced nor any CDR / CAF of the mobile phone was collected by the IO during the investigations. Therefore, in these facts and circumstances, there are lot of doubts in the prosecution story, the benefit of which, should be given to the accused.
11. On the other hand, Ld. Addl. PP for the State strongly controverted the above contentions and has argued that from the testimony of PW2 Niranjan, it is clear that the accused along with four other JCLs had robbed the complainant under the Adarsh Nagar Flyover, of his mobile phone and after robbery all of them left in the erickshaw driven by the accused and PW2 with the help of his father, PW6 Ashok chased them in auto rickshaw and with the help of PW3 HC Devanand and PW5 ASI Pramod Kumar, chased them and caught them near Mukandpur Chowk and all the accused persons were apprehended at the instance of the complainant immediately after the incident, and PW2 and other witnesses have also identified the present accused as one of the persons, who participated in the said dacoity.
Regarding the nonrecovery of the mobile phone, he submits that the accused persons on seeing the police party, disposed off the mobile phone. Therefore, the non recovery of the mobile phone is not fatal to the prosecution case. Therefore, the prosecution has been able to prove its case against the accused beyond any doubt therefore, he is liable to be convicted u/S. 395 CrPC.
SC No. 166/17; FIR No.206/14; PS. Adarsh Nagar State Vs. Jitender Kumar Page No. 10 of 19 -11-
12. PW2 in his testimonial deposition before the Court has deposed as under :
"I am residing at the aforesaid address alongwith my family and I am student. In the year 2014, I was studying in class XI at Government Sarvodaya Co-Ed. School, C Block, Saraswati Vihar.
The date I do not remember, in the month of March, 2014, I was coming to my house after giving my last paper. At about 1:30-2:00 pm, when I reached Adarsh Nagar flyover, I alighted from bus and going towards my house and under the flyover four persons met there and apprehended me and on the gun point they asked me to hand over the money. I was not having any money only I was having a bus pass. They searched my pockets and robbed my mobile phone make Samsung.
They also gave beatings to me. I requested them to return my sim. They all left in a battery rickshaw which was driven by fifth person.
One auto driver met me and in this auto we chased the battery rickshaw. My father used to sit on the same road and at that time he was doing his shave from road side barber. After seeing my father, I asked the auto driver to stop. I narrated the incident to my father and thereafter we went towards Mukundpur. At the red light two traffic officials met us. I narrated the incident to the SC No. 166/17; FIR No.206/14; PS. Adarsh Nagar State Vs. Jitender Kumar Page No. 11 of 19 -12- traffic constables and in their motorcycle the robbers were chased. Traffic police officials apprehended those five persons in a battery rickshaw.
Local police was called. All the robbers were apprehended. We were taken to PS Jahangir Puri. At PS Jahangir Puri, they told the jurisdiction falls in the area of PS Adarsh Nagar. Then all of us were brought to PS Adarsh Nagar and police recorded my statement which is Ex. PW2/A which bears my signatures at point A. All the robbers were identified by me including the driver of cycle rickshaw. At that time those four boys have also confessed their guilt and one toy pistol was recovered and police prepared the sketch which is Ex.PW2/B which bears my signatures at point A. The said toy pistol was converted into a pulanda and sealed and taken into possession vide seizure memo Ex. PW2/C which also bears my signatures at point A. The battery rickshaw was also taken into possession vide seizure memo Ex. PW2/D which bears my signatures at point A. One of the accused namely Jitender Kumar is present in the court today (correctly identified by the witness) who was arrested vide arrest memo Ex. PW2/E which also bears my signatures at point A. SC No. 166/17; FIR No.206/14; PS. Adarsh Nagar State Vs. Jitender Kumar Page No. 12 of 19 -13- Other accused persons were also apprehended by the police and thereafter my statement was recorded by the IO.
I can identify the case property if shown to me.
At this stage, MHC (M) has produced one sealed pulanda sealed with the seal of SK. Same is opened found to contain one toy pistol. Same is shown to the witness who correctly identifies it to be the same which was recovered from one of robbers who is JCL and used at the time of incident. The said toy pistol is Ex. P1."
He was subjected to crossexamination, wherein he deposed that he signed the document Ex. PW2/A when it was not completely written, only name and address was written. He again stated that the page on which he signed was completely written, but he had not noticed as to whether the first page was written or not. He was not read over his statement Ex. PW2/A when he signed the same. He further stated that the battery rickshaw was stationed at a distance of 2030 meters from the place from where he alighted from bus, there were numerous auto rickshaws and battery rickshaws near the place of incident, because it was auto rickshaw stand. He further deposed that it was correct that accused Jitender is not amongst the persons, who robbed him. He further deposed that the accused was sitting in the second battery rickshaw as a driver in SC No. 166/17; FIR No.206/14; PS. Adarsh Nagar State Vs. Jitender Kumar Page No. 13 of 19 -14- the line of battery rickshaws.
He further admitted that it was correct that he told the police that present accused had not done anything wrong with him, nor he threatened or quarreled with him.
13. PW8 IO SI Sandeep had deposed regarding the investigations as were carried out by him during the course of the case, including the arrest of all the JCLs and the present accused. He was also subjected to crossexamination, in which he has deposed that it was revealed to him that robbed phone was in the name of the relative of the complainant. He further deposed that during investigations, he had not collected the CDR / CAF of the mobile phone. He further deposed that he had not recorded the statement of the said relative of complainant and efforts were made to recover the mobile phone, but in vain.
He further admitted that it was correct that during investigations, it was revealed to him that accused was the driver of erickshaw, but he had not recorded the statement of any person to establish his association with the JCLs.
He further deposed that in the site plan Ex. PW8/B, he had not shown the position of erickshaw. He further deposed that he cannot admit or deny whether the erickshaw was at a distance of 2025 meters from the place of occurrence. He further admitted that it was correct that during investigations, it was revealed that accused had SC No. 166/17; FIR No.206/14; PS. Adarsh Nagar State Vs. Jitender Kumar Page No. 14 of 19 -15- not deboarded from erickshaw and went towards the complainant. He further deposed that he cannot say whether from where the said erickshaw was parked, as he was not able to see the place of occurrence.
14. Another material witness is PW6 Ashok, father of PW2, who had joined PW2 in chasing and apprehending the accused persons with the help of traffic police personnels PW3 and PW5 from near the red light of Mukandpur. His testimony with regard to the apprehension of all the accused persons, including four JCLs and present accused is corroborated by the testimony of PW3 HC Devanand and PW5 ASI Pramod Kumar, who were on traffic duty near Mukandpur Chowk, and who on the complaint of PW2 had chased the accused persons and apprehended them near the Mukandpur Red Light on the identification of PW2.
They have also stated that one toy pistol was also recovered from the present accused. However, the IO had stated that the toy pistol was recovered from JCL Shanu, which also matches with his version before the IO. PW7 has also stated that the toy pistol was recovered from accused Shanu. Therefore, testimony of PW5 in this regard is contradictory and is not correct.
15. PW6 is the witness of hearsay with regard to the incident of robbery, as he had not witnessed the incident of robbery and he was SC No. 166/17; FIR No.206/14; PS. Adarsh Nagar State Vs. Jitender Kumar Page No. 15 of 19 -16- told so by his son. Therefore, his version is second hand version. He had only chased with his son on TSR and alerted the traffic police officials, who in turn chased the accused person including the four JCLS and apprehended them near Mukandpur Red Light. However, none of the seizure memos or apprehension memos bears his signatures, which would have been natural, if he would have been present at the spot at the time of arrest and apprehension of all the accused / JCLs.
16. The probative force of the testimonial deposition of PW2 has been greatly diminished due to the answers given by him in his statement, as discussed above. Further the probative force of the prosecution, as a whole has also greatly diminished after the crossexamination of PW8 SI Sandeep and after the discussion of the testimony of PW6 Ashok, the probative force of the prosecution evidence takes a further dip in its creditability.
17. The chances of false implication of this accused in this case is very high, as he was not the person, who actually participated in the robbery, which was only done by the JCLs and he never alighted from the erickshaw at the time of the robbery and PW2 also admitted that there were many auto rickshaws which were standing nearby because it was auto rickshaw stand and accused was not amongst the persons, who robbed him.
SC No. 166/17; FIR No.206/14; PS. Adarsh Nagar State Vs. Jitender Kumar Page No. 16 of 19 -17- The IO also stated that during the investigations, he did not investigate or recorded any evidence that the present accused was associated with the JCLs nor his position was shown in the site plan Ex. PW8/B and he also admitted that it was correct that during the investigations, it was revealed that accused never alighted from the erickshaw and went towards the complainant and he said that he cannot say that from where the erickshaw was parked, the place of incident was visible io not.
18. In these circumstances, it is quite probable that the accused was waiting near the place of incident, being the erickshaw stand, waiting for the passengers and having no involvement in the episode of dacoity and he just drove, as per the wishes of the JCLs oblivious of the dacoity.
Further, mobile phone has not been recovered nor the bills of the purchase thereof have been produced nor the IO had collected the CDR / CAF of the mobile phone nor examined the statement of the relative of the complainant to whom the said mobile phone allegedly belonged. These facts also further pulls down the probative force of the prosecution case to a great extent and it appears that PW6 Ashok had only been joined as a witness to strengthen the case of the prosecution as an after thought by the IO.
19. The investigation by the IO does not reveal any culpability of the SC No. 166/17; FIR No.206/14; PS. Adarsh Nagar State Vs. Jitender Kumar Page No. 17 of 19 -18- accused in the offence, even PW2 the star witness of the prosecution also admits that the present accused did not actually participate in the incident and he was only the Erickshaw driver.
20. In these facts and circumstances, the probative force of the prosecution evidence and that of the defence evidence are equally balanced. It cannot be said that which evidence has more probative force. It is equally probable that the accused may be involved in the incident of dacoity, it is equally probable that he may have been falsely implicated in this case being a erickshaw driver. The probability of innocence and culpability of the accused are 50% each and therefore, on this kind of doubtful / unsure evidence, accused cannot be convicted.
The yardstick in the criminal trial is proof beyond reasonable doubt. The standard of proof in criminal trial is that the prosecution should prove its case against the accused persons beyond any shadow of doubt i.e. beyond reasonable doubt on the probative scale where the probability of happening of any event is measured or assessed i.e. on scale 0 to 1, the same should be touching points 7 or 8 i.e. the probative force of the prosecution evidence should be in the range of 70% or 80% to establish it beyond reasonable doubt, which is totally lacking in the present case, as discussed above. The prosecution has failed to achieve such grading on the said scales. Therefore, on such kind of doubtful evidence, the accused SC No. 166/17; FIR No.206/14; PS. Adarsh Nagar State Vs. Jitender Kumar Page No. 18 of 19 -19- cannot be convicted. Accordingly, the accused is stands acquitted of the charge(s) under Section 395 IPC by giving him the benefit of doubt. His previous bail bonds are cancelled. Previous surety stands discharged. Original document(s), if any be returned after cancelling the endorsement(s), if any on the same, if the same are not resubmitted while furnishing bail bonds u/S. 437A CrPC.
21. The Accused has already furnished his bail bonds in compliance of Section 437A Cr.P.C, which will remain valid for a period of six months from today, as per the provisions of Section 437A CrPC.
File on completion be consigned to record room.
Announced in the open Court (Sanjeev Aggarwal) th on 20 day of Nov. 2018 Addl. Sessions Judge02,North Rohini Courts, Delhi 20.11.2018 SC No. 166/17; FIR No.206/14; PS. Adarsh Nagar State Vs. Jitender Kumar Page No. 19 of 19